A/74/160
from many of the requirements, restrictions and subjective elements contained in
earlier documents:
(a) Firstly, the very beginning of the provision outlines the context in which a
minority is to be defined by indicating “in those States in which … minorities
exist …”;
(b) Secondly, it clarifies that not “all” minorities are envisaged by this
provision, only linguistic, religious or ethnic minorities. It therefore moves away from
earlier language which at times referred to racial or national minorities, among others;
(c) Thirdly, it discards entirely more subjective requirements which appeared
in earlier proposals, including the need to be deserving of minority rights, such as by
being “loyal”, “non-dominant”, “non-indigenous” or “desiring of maintaining” their
identities. None of these are retained in the wording of this legally binding provision;
(d)
Fourthly, it refers to individuals (“persons”) rather than to groups;
(e) Finally, it also seems to intentionally omit other restrictive suggestions,
including the need to be either a national or a permanent resident of the country
involved, a traditional minority or someone with some kind of long presence within the
State. This last aspect is, as many have pointed out, fairly obvious, since the wording
of the provision, in its plain meaning, is as should occur under article 31 of the Vienna
Convention on the Law of Treaties with the use of the words “all persons … with the
other members of their group”, rather than the terms “citizens” or “nationals”, which
appear in treaties intended to restrict the rights involved to these latter categories of
individuals.
45. The central point to retain from the above is that, when considered in its
historical context, the term minority, as defined by the final wording adopted in article
27, is expansive, in the sense that it discards all other previously proposed restrictions
on those who could exercise the rights, except for omitting the category of “national
minority”. The above is a textual reading of the legal provision, so it may be useful
to point out that the meaning described above is neither ambiguous nor obscure, nor
does it lead to a result which is manifestly absurd or unreasonable. 14 It is at the same
time clear and expansive: the provision guarantees certain rights to all those in a State
who are members of a linguistic, religious or ethnic minority, with no other
requirement or precondition, in international law based on “the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and
purpose”. It is noteworthy how the normal meaning of the terms involved diverge
from what was suggested in the proposals of both Mr. Capotorti and Mr. Deschênes
when in 1976 and 1985 they were mandated to clarify the content of article 27 of the
Covenant or the definition of a minority. Later developments, and in particular the
interpretation of the concept of a minority by the Human Rights Committee itself, as
the expert treaty body mandated by the Human Rights Council with the application
of article 27, appear to confirm this understanding as to who is a minority.
6.
Jurisprudence of the Human Rights Council and its approach to article 27 and
the concept of a minority
46. One important development since the attempts from the 1970s to clarify who is
a minority has been the jurisprudence of the Human Rights Committee itself, since in
a sense it should be the body with ultimate responsibility for clarifying the content
and concepts in article 27. Almost 40 years after its first adoption of views on article
27 in 1981, 15 and with its adoption of a general comment on the provision and its
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14
15
19-11967
See Vienna Convention on the Law of Treaties, art. 32.
Communication No. 24/1977, Lovelace v. Canada, Views adopted on 30 July 1981.
15/19